Privatization and Commodification of Water

Harold Shepherd is an attorney located in Pendleton, Oregon, specializing in litigation, advocacy and other legal issues regarding water rights as they relate to Indian tribes.

Part Two

Editor’s Note: Part One appeared on page 9 of the April issue under the title, “Organization Established to Resolve Indian and Non-Indian Water Issues.”

The situation in the courts becomes all the more alarming when one attempts to find litigants that have had less success than tribes in the current Supreme Court. Since 1986, for example, the year William Rehnquist became Chief Justice, convicted criminals have won reversals in 36 percent of all cases before the court, while the court reversed only 23 percent of the Indian cases.7 In addition, states have won jurisdiction over Indians in Indian Country in 54 percent of the cases in the Rhenquist court while winning only 38 percent of similar cases in the previous Burger Court.8

As one of the organizations working to reverse such trends, the Center for Tribal Water Advocacy (CTWA) was established to conduct legal research, analysis, policy and litigation to protect and restore tribal fishery and water interests including water quantity, quality and rights for the health of the watershed ecosystem, preservation of cultural identity and the benefit of tribal members. The efforts of the center will cover a broad range of topics in advocating and protecting tribal water rights and interests including reserved water rights, water quality, endangered species, stream inflows, water conservation, water right permitting and legislation.

Primarily in the fund raising stage right now, CTWA is seeking support from Northwest tribes for grant applications to advocate on behalf of tribes in relation to state water right permits that impact tribal fishery resources and federal land management agency actions that impact water quality and stream inflows, to act as a coordinating entity for discussions on tribal water issues and developing strategies to protect tribal water interests, and is working with the University of Oregon School of Law to put together the first annual Northwest Tribal Water Rights Conference which will take place in fall of 2004.

The threat to water interests of Northwest tribes reflects an issue that exists on a global scale. Last September, the World Summit on Sustainable Development government and corporate delegates gathered in Sandton (South Africa’s new financial center) to discuss the privatization and commodification of water with World Bank and World Trade Organization officials. Under the belief that liberal market economics will resolve international economic and environmental problems, governments and international institutions around the world are advocating putting water up for sale and letting the market determine its future.9

Conservationists and indigenous people argue, however, that privatizing the ecological public trust abandons both natural resources protection and governmental obligations to preserve culture and tradition by turning what have traditionally been public resources into private commodities. In his presentation at the World Summit, Tom Goldtooth, International Indian Treaty Council and Director of Indigenous Environmental Network, USA said:

[W]estern forms of development have not been sustainable and, instead, have been a disruption to our cultural practices, environmental degradation of traditional lands, biodiversity and the bodies of our mothers and families. Development, as it has been practiced within our communities and territories has been a major factor that continues to create poverty and foster dependency on developmental and financial systems that don’t recognize indigenous traditional knowledge and values.10

The privatization of regulations requiring mitigation related to water right permits is also taking hold in the Northwest. The Oregon Water Resources Department, for example, recently adopted rules authorizing water users in the Deschutes River basin to earn “mitigation credits” by implementing conservation projects and then sell or otherwise transfer such credits to applicants for ground water permits to be applied as mitigation for additional water development projects.11 Last year, the Washington state Department of Ecology reversed a decade-old moratorium on the issuance of new surface water rights on the Columbia River by allowing several permitees to divert approximately 140 cubic feet per second from the river in exchange for paying user fees that will be used by the state to purchase replacement water.

Reliance on “development increases” to promote restoration of flows and protection of fish habitat, however, seems inherently contradictory when such increases are the primary reason for over-appropriated stream flows and increased competition with tribal water rights to begin with. To make matters worse, once development takes place, the mitigation credit approach would rely on unpredictable market-based incentives and trends to prevent impacts from such development.

At the same time there is hope for recognition of tribal land and tribal water rights. These have received a fair amount of attention in the media lately as a result of recent discussions between the federal government and the Klamath Tribes of Southern Oregon over the tribe’s request for the return of 690,000 acres of its former homeland. Although, it’s been on the table for several years, the federal government only gained renewed interest in the proposal as a result of recent attention to extensive tribal water rights in the Klamath Basin. If the tribe’s water rights claims survive legal challenges, the tribe could end up controlling every drop in the basin. It would wield the legal leverage to cut off water to everyone else if needed for fish and wildlife (such as the endangered suckers).

The current solicitor under the Bush administration has indicated an intention to establish “a mechanism for heading off disputes” in the tribal water rights area including an emphasis on negotiation rather than litigation.12 The Western Governor’s Association (WGA) at their August 14, 2001, meeting adopted a resolution sponsored by then Oregon Governor John Kitzhaber which provides that the “Western Governors continue to support negotiated rather than litigated settlement of Indian water rights disputes.” 13

Although federal courts have become less responsive to tribes in water rights claims, this does not mean that states and others who may be affected by recognition of tribal water rights have reason to walk away from the table. In fact, in both federal and state courts, tribes have won on significant issues related to water rights. The Supreme Court of Arizona, for example, states that regardless of conflicting state laws, federal law authorizes the government to reserve a right to groundwater under Indian reservations, if and to the extent that groundwater may be necessary to accomplish the purposes of a federal reservation.14

The U.S. Supreme Court recently found that an Executive Order removing the Chippewa Indians from lands previously ceded to the federal government by the tribe does not mean that the tribe relinquished such rights by entering into an 1855 Treaty; nor were such rights extinguished when the state was admitted to the Union.15 Further, in most federal district court cases involving tribal treaty rights versus state rights, it is the tribes that prevail,16 and active litigation on tribal cases can freeze all other affected applications for water rights and restrict all related non-Indian development for as long as the litigation continues.

CTWA’s goal is to help tribes in ensuring that federal and state agencies, and other water interests in the Northwest, pursue sustainable water policies and practices when tribal trust assets are affected. At the same time, CTWA intends to largely defer to its future clients who retain the knowledge and expertise to determine the best and most effective strategies, whether it be advocacy, lobbying, negotiation and/or litigation, for protecting water quality and quantity upon which tribal fishery resources depend. As such, the center’s success will come from its clients’ firsthand knowledge and expertise in what actions are needed to protect tribal water resources.

Additionally, the center will extend its expertise in support of tribal water interests in the Northwest by providing a centralized entity that can coordinate tribal efforts throughout the region to protect federally reserved water rights in negotiations with private individuals and/or state or federal entities. This will provide a means for tribes to present a unified and coordinated effort on legal and policy issues related to tribal water rights through research writing, comments, negotiation, appeals, litigation, settlement and conferences addressing tribal water issues. §

For more information, contact the center at (541) 276-1624 or waterlaw@uci.net or visit their Web site at http://www.tribaladvocacy.org.